State succession: theories, kinds and consequences

1. Meaning

State succession is the replacement of one State by another in the responsibility for the international relations of a territory (Vienna Convention on Succession of States in respect of Treaties, 1978, Article 2(1)(b); the same definition in the 1983 Convention). The predecessor and successor States are the two parties. It must be distinguished from succession of governments, where the State continues and only the government changes: then all rights and obligations continue (Tinoco Arbitration, 1923; the Soviet Government remained bound by Tsarist debts in principle).

2. Theories

• Universal succession theory (Grotius, drawing on Roman law of inheritance). The successor steps into the shoes of the predecessor and takes all its rights and obligations, as an heir takes the estate. Criticism: States are not persons who die and leave heirs; the theory ignores the political change involved and would force a new State to accept burdens it never chose.
• Negative or clean-slate theory (the positivists; Keith). The successor takes nothing except what it chooses; sovereignty is not transferred but newly acquired. Criticism: it would destroy private rights and the stability of boundaries and leave creditors without remedy.
• Organic substitution / continuity theory (Max Huber): the successor takes the territory as it is, with the burdens attached to it.
• Modern view. Neither extreme reflects practice. The answer depends on the type of succession and the subject-matter: localised rights and obligations pass; personal or political ones do not; newly independent States have a clean slate for treaties but not for boundaries.

3. Kinds of succession

• Universal succession: the predecessor ceases to exist entirely, by annexation, merger or dissolution (the dissolution of Czechoslovakia into the Czech Republic and Slovakia, 1993; the merger of North and South Yemen, 1990; the absorption of the GDR by the FRG, 1990).
• Partial succession: the predecessor continues but loses part of its territory, by cession, secession or the independence of a colony (India and Pakistan, 1947; Bangladesh, 1971; South Sudan, 2011).

The 1978 and 1983 Conventions use five categories: transfer of part of territory; newly independent States (former colonies); uniting of States; separation of part of a State; dissolution.

4. Succession to treaties

Vienna Convention on Succession of States in respect of Treaties, 1978 (in force 1996, with few parties; much of it reflects custom).

• Boundary treaties and territorial regimes are not affected by succession (Articles 11 and 12). This protects the stability of frontiers (Frontier Dispute, Burkina Faso v. Mali, ICJ, 1986, applying uti possidetis juris; Gabčíkovo-Nagymaros, 1997, holding that the 1977 treaty was a territorial regime binding on Slovakia).
• Newly independent States begin with a clean slate (Article 16) but may notify succession to multilateral treaties (Article 17).
• Uniting or separation: treaties continue in force for the successor territory (Articles 31 and 34), subject to exceptions.
• Political treaties (alliances, neutrality) do not pass, since they are personal to the predecessor.

5. Succession to public debts

Vienna Convention on Succession of States in respect of State Property, Archives and Debts, 1983 (not in force).

• General rule: a succession does not as such affect the rights of creditors (Article 36). The debt passes in an equitable proportion, taking account of the property, rights and interests that pass to the successor (Articles 37, 40 and 41).
• Local or localised debts, contracted for the benefit of the transferred territory (a railway or port), pass with it.
• Newly independent States: no debt passes unless agreed, having regard to the link between the debt and the activity in the territory; the agreement must not endanger the fundamental economic equilibrium of the new State (Article 38).
• Odious debts, such as war debts contracted to subjugate the territory, or debts used against the interests of the population, do not pass. After the Spanish-American War, the US refused to assume the Cuban debt raised by Spain to suppress the Cuban insurrection (1898).
• West Rand Central Gold Mining Co. v. The King (English High Court, 1905): after annexing the South African Republic, Britain was held not liable in its own courts for gold seized by the Boer government, since a conquering State is not bound to take over the liabilities of the conquered; whether it does is a matter for the conqueror.

6. State property, archives and private rights

• State property located in the transferred territory passes to the successor without compensation (1983 Convention, Articles 14 to 18). Movable property connected with the territory passes too; other property is shared equitably.
• Archives relating to the territory pass to the successor.
• Private property and acquired rights: the PCIJ in German Settlers in Poland (advisory opinion, 1923) held that private rights acquired under existing law do not cease on a change of sovereignty. Practice is less firm on concessions and contracts with the predecessor government, which the successor may terminate, though many writers say compensation is due.

India. Indian courts treat the matter as one of municipal law: the new sovereign is bound only by rights it recognises. In Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, 1958 INSC 52, AIR 1958 SC 816, the company had an agreement with the Ruler of Jind exempting it from income-tax beyond a fixed rate. After Jind merged into PEPSU and then into the Union, the Court held that the agreement did not bind the new sovereign: on a change of sovereignty by an act of State, the new sovereign is not bound by the contracts of the old unless it recognises them, expressly or by conduct.

7. Nationality and membership of international organisations

• Nationality: inhabitants of the transferred territory normally acquire the nationality of the successor, often with a right of option. The ILC's Articles on Nationality of Natural Persons in relation to the Succession of States (1999) seek to prevent statelessness. Article 7 of the Citizenship Act, 1955 allows the Central Government to specify by order who become citizens when a territory becomes part of India.
• Membership: a new State must apply for membership of the UN under Article 4 of the Charter. After partition, India was treated as continuing the original membership of British India (an original member in 1945), while Pakistan had to be admitted as a new member (1947). On the dissolution of the USSR, Russia was accepted as the continuing State in the UN and its Security Council seat (1991). The Federal Republic of Yugoslavia (Serbia and Montenegro) was not accepted as continuing the former Yugoslavia and was admitted afresh in 2000.

8. India and Pakistan, 1947

The Indian Independence (International Arrangements) Order, 1947 provided that rights and obligations under international agreements to which British India was party would devolve on the Dominion of India, and, where they related exclusively to the territories of Pakistan, on Pakistan as well, and that India would continue the membership of international organisations. This was a partial succession with India as the continuing State.

How this is examined

For “theories and kinds”, give the theories with criticism, then universal and partial succession with examples and the five Vienna categories. For “consequences” or “rights and duties”, use sections 4 to 7 as headings: treaties, debts, property and private rights, nationality, membership. Add Dalmia Dadri and the 1947 Order to show the Indian position.